Literally un-bee-lievable: American news satire and the US Supreme Court



Stephen Skalicky

Victoria University of Wellington
Aotearoa New Zealand

stephen.skalicky@vuw.ac.nz

Preliminaries: Satire and News Satire

What is satire?

Contemporary American News Satire

The Babylon Bee

Growing evidence the right can “do” satire & humour

Adopted conservative narratives & tropes

  • a persecuted entity
  • unfairly targeted by the liberal media
    • Twitter account suspended in 2016
    • status of satire is contested because of their bias
  • These claims are likely exaggerated (Bach, 2024; Sienkiewicz & Marx, 2022)
  • The Bee thinks punching up = against the liberal media (Bach, 2024)

The Bee and its satire

\(\rightarrow\) The Bee is still satire, regardless of its message

A satirical Facebook page

Citizen satire

Anthony Novak, resident of City of Parma, Ohio, USA

  • Created a copy of the PPD Facebook page
    • “we know crime” \(\rightarrow\) “we no crime”
  • Created satirical posts (e.g.)
    • Fake recruitment ads banning minorities from applying
    • Abortion services in WalMart parking lot

Public Reactions

  • calls to the police station
  • posted comments to the page
    • some joining in
    • some decrying the page
    • some warning the page was fake
  • Novak deleted spoiler comments (\(\leftarrow\) important)
    • also posted police warning to his site

Police response

  • detectives obtained Novak’s info from Facebook
  • arrested Novak \(\rightarrow\) “disruption of police operations”
  • several days in jail & electronics seized

Isn’t satire legally protected speech in the USA?

Hustler Magazine, Inc. v. Falwell (1988)

actual malice test

  • false statements with reckless disregard for the truth
  • satire, by design, does not assert truth (Todd, 2016)

reasonable reader test

  • would a reasonable person think the satire is factual?

Was Novak’s arrest retribution for satirical criticism?

Enter the Sixth Circuit

\(\rightarrow\) Was Novak’s site satire?

Yes:

  1. “the genius of parody is that it comes close enough to reality to spark a moment of doubt in the reader’s mind before she realizes the joke”

  2. including a disclaimer/warning would “ruin the punchline”

But:

  • Unwilling to rule on whether Novak’s page passed the reasonable reader test
  • Felt it was for a jury to decide, booted back down to District Court

Through the courts (again)

District Court (again)

  • summary judgement in favour of PPD
  • claim of qualified immunity was upheld
  • Novak appeals, back to Sixth Circuit

Sixth Circuit (again)

  • The initial creation of the Facebook page was satire (and thus protected)
  • The maintenance (e.g., deleting spoiler comments) of the satire was potentially not protected
  • therefore officers had probable cause to arrest

Novak’s claims are squashed

The United States Supreme Court

  • Novak’s only remaining legal recourse
  • Filed a Writ of Certiorari asking USSC to see case

How could the Sixth Court first conclude that satire must look real and not spoil itself, yet later decide that Novak’s actions to perpetuate the authentic feel of the Facebook page were not part of the satire?

The Onion and The Bee go to court

The first satirical Amicus Curiae?

The Onion - what is satire?

Core elements of parody/satire

  • Deception is a crucial element for satire (parody)
  • “tricking” readers
  • Citing prior court decisions
  • satirical - yet playing by the rules
  • Definition of satire agrees with theory

The Onion - The reasonable reader

Who is the reasonable reader?

  • the reasonable reader is not wholly tricked
    • but initial deception is still part of satire
  • people who “fall” for the satire are not reasonable readers
  • reasonable readers do not need a spoiler/warning
  • again - supported by prior law

The Onion - Concluding point

The Bee - satirical?

A tough act to follow

  • similar attempts at (playful) self-aggrandization
    • potentially fueling satirical tone
  • immediate “ownership” of labels
    • all citations are to “liberal” news sites (e.g., CNN)
  • playfully refers to The Onion as “a cute little upstart”
  • echos the importance of satire/parody in free society

Two peas in a pod

Shared vicimisation

  • constructed parallel between Novak and The Bee
  • both persecuted for doing satire
    • echoing of right-wing persecution narratives
  • The Bee equates their satire with Novak’s actions
    • blurs the differences between the two

Cold Comfort

Siding with the PPD

  • Satire is harmful as it hurts people’s feelings
  • People in power (government) should avoid having hurt feelings
  • Therefore, it’s OK to censor/punish satirists/comedians
  • Citations are to past dictators / authoritarian rulers
  • Perhaps the most satirical of the 3 briefs

Comparing the briefs

The Onion

  • focused on defining satire/parody
  • Good alignment with theoretical definitions
  • relied more heavily on case law
  • show-and-tell: used satire in the brief
  • established authority and credibility
  • mocks the legal system & courts

The Babylon Bee

  • focused on explaining similar persecutions
  • echoing of censorship narratives
  • elements of play, but not quite satirical
  • cold comfort - effects of legal censorship persist even if a judge eventually rules in your favour
  • mocks the “liberal” media & (perceived) authoritarian government

Second brief

  • left un-filed, satirical but risky
  • The Bee worried people would take it seriously - one of many ironies

Conclusions

Unified in purpose

  • Both outlets united in advocating satire/parody as free speech
    • But do so in their own ways
  • Direct engagement with US legal process - unprecedented?
    • Compare to Colbert Super PAC or Stewart’s Rally to Restore Sanity and/or Fear

The Bee’s perpetual challenge

  • Regardless of The Bee’s politics, they are doing satire
  • Double duty - legitimizing itself as satire while trying to protect satire
    • Noteworthy: little to no media coverage of The Bee’s brief when compared to The Onion
  • Perhaps they felt compelled to follow The Onion’s lead as a way to gain credibility?

A waste of time?

  • Novak’s case was ultimately not seen by the USSC
  • As technology changes, satire changes. Are the courts ready?
  • The Onion and The Babylon Bee are both critics and members of the American political landscape

Thank you!

  • Further ideas, questions, and collaborations are welcome!

Contact:

Stephen Skalicky

stephen.skalicky@vuw.ac.nz

References

35th International Society for Humor Studies Conference

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